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FCA: a motion to intervene is an interlocutory decision

The Ontario Federation of Anglers and Hunters (appellant) appealed an order from the Federal Court dated February 18, 2014,1 that dismissed the appellant’s motion for leave to intervene in Alderville First Nations et al v Canada et al.2 The appellant presented its notice of appeal for filing 22 days later, on March 12, 2014.

The respondent Alderville Indian Bands brought a motion for an order striking the notice of appeal on the ground that it concerned an interlocutory decision and was therefore filed late.

The appellant argued the notice of appeal concerned a final decision and was therefore filed in time. However, if it concerned an interlocutory decision, the appellant requested the court to exercise its discretion in favour of granting an extension of time for filing.

To determine whether the notice of appeal was filed in time, the Federal Court of Appeal (FCA) had to decide whether the Federal Court’s decision was final or interlocutory. A notice of appeal of an interlocutory decision must be filed within 10 days,3 while a final decision must be filed within 30 days.4

Decision

The FCA struck the notice of appeal on the ground that it had been filed late and decided the appellant was not entitled to an extension of time.

Effect of the decision on the party to whom it applies

Justice Stratas, writing for the court, based his analysis on the definition of “final decision” in subsection 2(1) of the Federal Courts Act (Act),5 which provides that a “final judgment” is “any judgment or other decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding.” In this case, Justice Stratas established that the “proceeding” was the action in which the appellant sought to intervene.

In determining whether the decision in this proceeding was final or interlocutory, the court considered the decision’s effect on the party to whom it applied. Justice Stratas decided the dismissal of the appellant's motion to intervene did not determine any of the appellant's substantive rights. Rather, it denied the appellant the procedural right to have a say in a proceeding where others' substantive rights were being determined.

Justice Stratas concluded that the decision was interlocutory and the deadline for filing the notice of appeal was 10 days. The appellant therefore failed to meet that deadline.

Extension of time for filing

Having decided the decision was not final, Justice Stratas denied an extension of the deadline to appeal mainly on the basis that there was no evidence of a continuing intention to appeal. The appellant merely sought to re-argue the merits of its motion and the merits of its position in the action if it were allowed to intervene. Moreover, Justice Stratas was not persuaded that the appellant’s appeal had merit.

Comments

One of the questions determined in previous motions to intervene was whether the proposed intervener was directly affected by the outcome (see Rothmans, Benson & Hedges Inc. v Canada (Attorney General)).6 Justice Stratas supported his finding by citing his own recent decision in Canada (Attorney General) v Pictou Landing First Nation,7 where he disagreed with the previously applied standards on intervention as set out in Rothmans, supra.

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